“It shall be the duty of every elector to vote at each election.”

In the Why are elections bad things post the issue of compulsory voting has come up. Several threadsters have the view that voting per se is not mandatory, just turning up and having your name struck off the roll is mandatory. To be fair this is a common view that is actively promoted in the community. So what is the legislation?

Marking of votes in House of Representatives election
(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:

(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.

(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.

So far we have established that voters must mark their ballot paper in private and second how they must mark their ballot paper.S245:

Compulsory voting
(1) It shall be the duty of every elector to vote at each election.

(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.

(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:

(a) send a penalty notice by post; or

(b) arrange for a penalty notice to be delivered by other means;

to the latest known address of each elector whose name appears on the list prepared under subsection (2).

As it happens S233(1)(b) makes it difficult for the Electoral Commissioner to comply with with S245(2). The best the Electoral Commissioner can do is make a list of people who didn’t turn up to vote but he should be making a list of everyone who failed to comply with S240 for House elections and/or S239 in Senate elections. S 238 deals with spoilt papers that occur by “mistake or accident”.

Are you saying a deliberate informal vote (e.g. blank paper) is against the law?

my answer is “Yes”. Not just blank, but any deliberate violation of S239 and S240 is against the law (the legislation for those who distinguish between “law” and “legislation”).

A few years ago two of my RMIT colleagues and I published a paper in Policy on this very issue:

Despite the plain language of the Act, many Australians are under the impression that voting per se is not compulsory. Rather it is compulsory to simply turn up to the voting booth, and have your name struck off the register. Whenever compulsory voting is discussed in the media, the letters pages of the newspapers are filled with correspondents claiming voting is not compulsory, while attendance is compulsory. Before discussing this notion in greater detail, consider the case of Krosch v Springell: ex parte Krosch [1974] QdR 107. Mr Springell arrived at a polling booth and handed the electoral officer a note saying he did not wish to vote for any candidate, as he found them all to be unworthy. He was prosecuted, and fined, for not voting despite the fact he had made the effort to turn up on Election Day. In its submission to the JSCEM Inquiry into the 2004 election, the AEC makes the claim “Because voting is compulsory in Australia, turnout is regularly in the vicinity of 95%.” Clearly, the AEC takes the view that compulsory voting leads to high turnout, not compulsory turnout leads to high voting.

Colin Hughes – the Australian Electoral Commissioner between 1984 and 1989 – has argued that voters were not compelled to vote for any candidate, they could always spoil their ballot. Kim Beazley – leader of the opposition – has argued voters can simply put the ballot in their pocket and leave the polling booth (in apparent defiance of section 339(1) that explicitly defines this behaviour as an offence). While Chris Puplick AM – former Liberal Senator – has written, voters “have an absolute right not to vote by placing a blank or spoiled ballot paper in the ballot box.” Judges enforcing the law, however, appear to be unaware of this “absolute right” – especially with regard to blank votes. Chief Justice Barwick, for example, wrote that voters must actually mark the ballot paper, and deposit that ballot into a ballot box. While Justice Blackburn was of the opinion that casting an invalid vote was a violation of the Act. Justice Blackburn’s view, however, is obiter, and is even regarded as heretical. Both views, however, are consistent with section 233 of the Electoral Act where the process of voting is described.

Voters, increasingly, do spoil their ballots. [Figure showing this is in the link above]. This, of course, begs the question, ‘What does happen to individuals who vote informally?’ Nothing. Australia was the first country to employ the secret ballot (often referred to as the ‘Australian Ballot’). According the Australian Electoral Commission, it is not “an offence to vote informally in a federal election.” After all, there is a secret ballot (section 233(1) of the Electoral Act); in principle the authorities should be unable to identity any voter from their actual ballot. For example, any ballot where the voter has written their name is invalid. Furthermore, many voters may ‘legitimately’ spoil their ballot through confusion and error. This view, however, is not entirely consistent with an AEC Research Report where the author writes, “While compulsory voting avoids a high degree of abstention, there is no guarantee that everyone will comply with the electoral laws and vote formally” (emphasis added). Similarly, the JSCEM report into the 2004 election states, “Because of the secrecy of the ballot, it is not possible to determine whether a person has filled out their ballot paper prior to placing it in the ballot box. It is therefore not possible to determine whether all electors have met their legislated duty to vote” (emphasis added).

This inconsistency may well explain the confusion. Voters are legally required to vote, but there is no penalty for spoiling your ballot. Indeed, given that failing to vote because the voters dislikes all candidates equally, or cannot decide between them, is not a valid and sufficient for not voting, many voters may well have to spoil their ballots, or pay a fine. A reading of some of the court cases involving compulsory voting is instructive. The definitive case is Judd v McKeon (1926) 38 CLR 380 where the general principle of “valid and sufficient” was determined to be a “personal physical inability to record a vote.” Of course, the court left open the notion that “valid and sufficient” cause was a function of the circumstances, yet it is difficult to understand what these other circumstances could be. They are not, for example, an ideological objection to voting (Judd v McKeon), nor is a lack of preference for any candidate (Faderson v Bridger 1971 126 CLR 271), or even ignorance of the candidates (O’Brien v Warden 1981 37 ACTR 13). The latter cases are quite remarkable. Mr Faderson indicated he had no preference for any of the candidates, and to say he had would constitute a lie. High Court Chief Justice Barwick indicated that voters are not expected to express an opinion of what they want, but merely to indicate, from the choice available to them, what they must have. This neatly sidesteps the issue of voters being forced to lie. The Warden case is even more damning. Here the issue of voters lying is not sidestepped. Mr Warden arrived in the ACT just prior to an election, and was ignorant of the candidates, and their policy platforms. Nonetheless, he was found not to have a “valid and sufficient” reason for not voting. In the words of Chief Justice Blackburn of the ACT Supreme Court: “In my opinion the Act does not oblige the elector to make a true expression of his preference among the candidates. On one view he must make an expression of apparent preference; on another he need not express himself intelligibly or at all.”

So voting is compulsory in Australia. Deliberate spoiling of ballot papers is illegal but detection methods make this part of the law difficult to enforce.

Compulsory voting is popular amongst the political classes and the more honest of those argue that yes voting is compulsory, but that it should be compulsory. But that is a completely different argument.

296 Responses to “It shall be the duty of every elector to vote at each election.”

It makes sense that if you receive the majority of you payment from the Government you should not be able to be able to influence Government spending decisions, unless you are risking your life or person on the community’s behalf.

I don’t know that I’d make the exclusion even then. Once you start making exclusions they tend to grow.

Also, everyone should get the vote in the lower house – that is for representation, and it’s not a principle you want lost either.

Different houses, different principles, different conditions for electors.

You still don’t say how Gough had anything to do with the change of culture in Qld regarding the education of disabled children.

You even gave the start date of the change as 1971, when Gorton and the McMahon were in the Lodge. Did you mention Gough because of the timing of the change? Could it you are guilty of the fallacy of post hoc ergo propter hoc?

But if we did that, the Senate’s power to reject or hold up Money Bills must be written into the Constitution. If it is left to convnetion, I can just see Lefty MHRs arguing that the Senate shouldn’t be allowed to overrule the lower house, as the Senate franchise is narrower than the ‘democratically’ elected house.

I would therefore argue that it is the House of Reps for which the vote is restiricted and the Senate for which everyone over 18 who isn’t a felon can vote. Then I would leave the Senate’s power as bound by convention as it is now. You could still then argue that the Senate isn’t any more democratic than the lower House because of the Statewide electorates for the Upper House. A system with this little bit of grit in it (adided by the continued existence of the Monarchy which adds a bit more of a question re legitimacy) would make our politcal arrangement really first class. We would also drop compulsory voting (or more accurately compulsory putting a ballot paper in the ballot box).

1971 coincides with my discharge and entry into special education. I was in a very good position to observe events because I was part of them. I developed a design brief for a school in 1983 and used the UN declaration of the rights of the child as part of the basis for the brief. It was also based on the Whitlam legislative reforms. This brief was successful but it took until 1987 for the school to be built because the Qld govt of the day stuffed around with the Commonwealth grant which again was predicated in the Labor reforms under Whitlam. In 1987 i had the great good fortune to open (as founding principal) the school (built at Mundingburra in Townsville) for $2.8 million, lots of dosh in those days.
Incidentally, you read like a lawyer.
Had lots of fun last year with one of your profession when I was pro bono advocate for a lad with a disability who had been treated very badly by a very posh private school.
We won the case (hearing before HREOC) in the first 5 minutes because the school’s very expensive brief had no knowledge of the application of the relevant legislation.
The refund of fees and apology to the lad’s father was gratifying.
Your gratuitous use of the dead language to cast doubt at my reading of history is entertaining, but irrelevant. I’m iPadding on the road so can’t link, but Google Geoff Swan’s paper. You’ll find it backs up everything I’ve posted.

Allowing governors to set electoral boundaries within their state to whatever they want has got to be on of the more stupid aspects of the US electoral system. It explains how Republicans can lose the popular vote in the Congress and yet still get a majority of the seats in the House.

In 1987 i had the great good fortune to open (as founding principal) the school (built at Mundingburra in Townsville) for $2.8 million, lots of dosh in those days.
Incidentally, you read like a lawyer.

Yeah right dickhead previously you reckoned you were a teacher in remote areas and the sun shone out of your arse in those poor, remote communities. Somehting like “the school ought to be the focal point of community life”.

Had lots of fun last year with one of your profession when I was pro bono advocate for a lad with a disability who had been treated very badly by a very posh private school.
We won the case (hearing before HREOC) in the first 5 minutes because the school’s very expensive brief had no knowledge of the application of the relevant legislation.

More pathological lying. Lawyers are stupid. Private schools offer poor service. I’m smarter than lawyers and beat them in court cases in five minutes.

Voting isn’t a fundamental right, it’s a privilege given us by the Monarch so she can justify obtaining supply from us in the form of taxation.

The only fundamental right involved in this discussion, Scapula, is the fundamental right of a person to keep what is his and not be forced to give it up to someone else as a result of the promise of lots of freebies for the weak-willed and the indigent.

Ah the old lie about the ‘rich’ and the corporates getting something from the state. Is that why the aged care, health and social security expenditures are by far the biggest Commonwealth budget expenditures?

It is quite clear that Government largesse is being used to buy votes of the less well off to rip money off from the the better off.

The Democrats got about 2.7 million votes (for the House), and the Republicans about about 2.65 million. But the Republicans ended up with 13 house seats and the Democrats 5. How did this occur? The Democrats won their districts with 60-85% of the vote – 2 were won with 85% of the popular vote. The districts that the Republicans won were won with popular votes of 51-65%.

So the Democrats get > 50% of the popular vote, but only 27% of the house seats.

Do you really think that was just good luck on behalf of the Republicans or perhaps there’s a bit of gerrymandering going on….?

The Democrats got about 2.7 million votes (for the House), and the Republicans about about 2.65 million. But the Republicans ended up with 13 house seats and the Democrats 5. How did this occur? The Democrats won their districts with 60-85% of the vote – 2 were won with 85% of the popular vote. The districts that the Republicans won were won with popular votes of 51-65%.

even under the most generous assumptions, redistricting explains less than half the gap between vote share and seat share this election cycle.

And there’s this important point:

But if the explanation is incumbency or political geography, all it means is that our single-member district majoritarian system distorts outcomes in ways that are difficult to eradicate without moving to a different system entirely.

You said that cororates and rich individuals benefited most from the largesse of the state. The when I prove you wrong you say that’s OK because the rich and the corporations get some largesse, and the government pays the middle classes some welfare.

MULTINATIONAL companies such as Google are exploiting different tax jurisdictions in Ireland and the Netherlands to pay minimal tax on the revenue they earn in Australia, says assistant treasurer David Bradbury.

Addressing the Institute of Chartered Accountants? tax conference in Sydney, he said he didn?t usually name companies but said ?there is a strong public interest in drawing attention to practices that have the potential to undermine the future sustainability of Australia?s corporate tax base??.

What is wrong with that? These other countries want to be the home of these multinational firms and are willing to compete more aggressively for their business. Furhermore, these companies don’t exist to give money to the Australian government.

You are out of your fucking mind. Look at the House votes and not Presidential votes. They have single member, winner takes all electorates.

So what? They don’t have PR. Why compare it to Presidential votes which uses the antiquated, barely applicable EV system and doesn’t use local or national preferential voting?

Let’s assume that PR is the be all and end all. The US LP got 1.63% of the vote in 2000 and got zero out of 435 seats. By rights, they should have gotten seven seats.

Presuming they would have gotten nominally GOP seats, the House in 2001 and 2002 would have looked like this:

GOP 214
Dems 213
LP 7
Ind 1

Well actually the Greens might have gotten 1 seat and the Indeps/others (Reform, Constitutionalist etc) might have blown out to about 25-30 seats.

They would have held the balance of power. They key issue in America is that they don’t use preferential voting of any kind (in a significant manner).

The Senate could weigh votes as an inverse of average population per Senator to appoint by a list if they really wanted to (it would be convoluted but it could be done without an amendment. We could do the same here (and although simpler might require a referendum).

They decamped to the Netherlands while leaving behind an insolvent fund, so they might have had other reasons for decamping as well, (it does appear a tax haven of choice according to the ATO), but I don’t have access to the vast and disgusting obscurity of their thoughts.

They decamped to the Netherlands while leaving behind an insolvent fund, so they might have had other reasons for decamping as well, (it does appear a tax haven of choice according to the ATO), but I don’t have access to the vast and disgusting obscurity of their thoughts.

You’re an idiot.

They went there before they (as part of) the attempt to list in the US. During the same process, they set up the fund.

By the way, the reason I made the earlier error about Australia’s uniqueness in having compulsory voting is because John Hirst said this in a talk I listened to – or to be more precise, I recall him saying it.

Perhaps I misheard.

At any rate, I lazily assumed that what I heard in Hirsts talk was accurate. Hirst, by the way, is against compulsory voting.

The Democrats do it too. Just not as much, but that’s not for want of trying.

No doubt. The only reason they don’t do it more is because they can’t. Its the electoral system itself which is flawed. The independence of the Australian Electoral Commission is something we should be very proud of. Complaints about bias or corruption by any of the political parties are extremely rare.

In any event, from a practical point of view McGhee has a plausible claim that:

btw its worth reading the comments on that post. Someone pointed out that his assumptions do have one flaw in that they assume that the 2008 district boundaries were neutral. The analysis that the commenter links to is quite interesting.

If you have safe seats that you win by large numbers, this is gonna happen. Lesser examples kept Bob Carr in power in NSW.

Yes, distribution is never going to be perfect especially where there are strong geographic differences (urban/rural) in voting patterns. And the electoral commission can only adjust the boundaries so often.

Still, if the ALP ends up with 70% of the lower house seats next election with less than 50% of the popular vote I predict there will be riots around here about the illegitimacy of the Gillard government

If compulsory voting gets a better turnout and higher rates of voting, then it’s a good thing WRT statistics, since it gets a bigger sample.

This notion is debatable as well. It’s like the ‘Observer Effect’; you probably shouldn’t expect that you’ve got the same result by forcing people to turn up, that you would have got if they had all of turned up voluntarily. The most obvious reason is that some people are definitely just voting randomly, and there’s almost certainly a myriad of more subtle effects on someones decision on where to put the ‘1’. Although you will get a higher percentage of the population turning out, you are probably not getting the same thing you would have got in a voluntary election, you are getting another thing. How much greater or lesser value or meaning that ‘thing’ has is subject to another debate, but you can be pretty much certain method A is not the same thing as method B.

Then there’s the people who don’t turn up, of which I can include myself. I would vote from time to time if it was voluntary, but because it’s not I’ve stayed off the electoral roll because I don’t want to vote every time and I’m willing to accept the cost that I never will be able to vote for a candidate I do like (unless they’re exceptional and I go and enrol, which I will do if they are exceptional). There are 1.5 million people in this country who are eligible to be on the electoral roll but aren’t, out of a total eligible voting population of less than 15million (I think it’s around 12 million but that does seem low). How many of them are like me? Do you still think that result is now more representative of the community?

Overall, the Australian democracy is quite OK, but really there’s not much special about it in any particular area.

Liberty Quote

There is no general case for indiscriminate “trust-busting” or for the prosecution of everything that qualifies as a restraint of trade. Rational as distinguished from vindictive regulation by public authority turns out to be an extremely delicate problem which not every government agency, particularly when in full cry against big business, can be trusted to solve.